Case Against Bin Laden's Driver Goes to the Jury

By Jerry Markon
Washington Post Staff Writer
Tuesday, August 5, 2008

GUANTANAMO BAY, Cuba, Aug. 4 -- A military jury began deliberations Monday in the war crimes trial of Osama bin Laden's former driver, a case that poses the first test of the Bush administration's controversial military commission system.

The six uniformed officers deliberated for 45 minutes after a two-week trial to reach a verdict on whether Salim Ahmed Hamdan conspired with al-Qaeda in terrorist attacks. Hamdan's trial is the first U.S. military commission since World War II. Critics have attacked the long-delayed system as unfair, but the administration calls it a tough-minded way to bring accused terrorists to justice.

Jurors were to return to court Tuesday morning.

The deliberations in an old aircraft operations center began after prosecutors said in closing arguments that Hamdan is a hard-core al-Qaeda warrior who knew about terrorist attacks and supported bin Laden's crusade against America.

As pictures of al-Qaeda leaders flashed on a television screen, prosecutor John Murphy called Hamdan a vitally important driver, weapons courier and bin Laden bodyguard.

"Al-Qaeda had huge aims, an aim to literally take down the West, to kill thousands, and they have. To create economic havoc, and they have. And they needed enthusiastic, uncontrollably enthusiastic warriors like the accused right there, Salim Hamdan," Murphy said, pointing at Hamdan.

Hamdan stared back impassively, tapping his left foot under the defense table. His lawyers portrayed the Yemeni father of two as a nobody, a salaried employee with no involvement in terrorism who cooperated with U.S. forces after being captured in Afghanistan in late 2001.

"The general is a war criminal, and therefore the driver is, too?" Joseph McMillan, an attorney for Hamdan, said at the U.S. military prison here. "No, it didn't work that way in World War II. Hitler's driver was never charged as a war criminal."

But the defense also appeared to acknowledge a key part of the prosecution's case: that Hamdan had pledged a loyalty oath, or bayat, to bin Laden. Such oaths were reserved for only a small percentage of bin Laden devotees, according to previous court testimony by al-Qaeda members.

"He pledged allegiance to his boss," said Navy Lt. Cmdr. Brian Mizer, Hamdan's military lawyer. "What about that bayat says: 'Osama, I will help you commit murder? I will help you with the attacks' " of Sept. 11, 2001? Hamdan, who is charged with conspiracy and material support of terrorism, faces a maximum sentence of life in prison. A two-thirds vote of the jury is required to convict him. The same jury would sentence him after a separate hearing.

The frustration of Hamdan's attorneys -- who say they cannot mount an adequate defense because the government insists on secrecy and has refused to turn over key documents -- briefly boiled over during closing arguments. Mizer made a reference to last week's secret testimony of one of two defense witnesses who took the stand in closed session. Such secrecy, rare in civilian courts, is far more common in the military justice system.

That reference drew a mild rebuke from Navy Capt. Keith J. Allred, the military judge.

Mizer, after vowing not to reveal any classified information, then said that the secret testimony had concerned "a significant offer of cooperation" that Hamdan made to U.S. forces while being interrogated in late 2001.

"I'm not going to have the government close this courtroom," Mizer told jurors. "You know what Hamdan agreed to do. You know what happened, how we squandered that opportunity -- not Mr. Hamdan."

Sources familiar with the classified testimony said that Mizer was alluding to an offer from Hamdan to help find bin Laden, whom U.S. forces were pursuing at the time.

Prosecutors and defense lawyers later declined to comment.

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